Police lack the authority under Cr.P.C Section 102 to seize immovable property; only due process can determine possession rights between landlord and tenant.

JUDGMENT

The petitioner herein is the owner of the building bearing door No.9/142/B of Muvattupuzha Municipality. It was let out to the additional fourth respondent. He conducted a chitty business there. On an allegation that the chitty amounts were not paid to the subscribers, crime was registered against the fourth respondent and in the course of the proceedings, the above room was seized. This is under challenge in this Writ Petition (C ), at the instance of the landlord.

2. The contention of the learned counsel for the petitioner is that, he is the owner of the building and that the whereabouts of the tenant, who is the fourth respondent is not known. According to him, the above seizure of the immovable property purportedly invoking Section 102 of the Cr.P.C is illegal. The learned counsel for the petitioner correctly relied on the decision of the three Judges bench of the the Supreme Court in Nevada Properties Pvt Ltd., Through its Directors Vs. State of Maharashtra and Another 2019 (4) KHC 782 (SC). In that decision, it was held that the power of a police officer under Section 102 of the Cr.P.C, does not include power to attach, seize and seal an immovable property. Evidently, the attachment is improper.

3. However, it is pertinent to note that the order of attachment is challenged, not by the tenant but by the landlord. Being the person affected by the seizure, the petitioner, being the landlord, also has the locus to challenge that order. It is all the more so, since, the additional fourth respondent-tenant has not come up to challenge that order, in spite of service of notice. The learned Public Prosecutor also could not support the order of seizure.

4. In the above situation, the seizure order has to be held to be illegal. Definitely, it has to be set aside. However, the position is that legally the tenancy continues. Tenant is entitled to continue in possession, until evicted by due process of law. In this situation, I am inclined to direct that the second respondent shall either remove the documents kept in the room, if required for the investigation or after preparing mahazar of the documents surrender the key to the jurisdictional Magistrate court within 15 working days from the date of receipt of a copy of this judgment. The court shall keep the key in safe custody. It shall be returned to the person legally entitled to receive it at the appropriate stage. If the landlord obtains an order of eviction, the court below will be justified in delivering the key to the person, who is the owner.

Writ Petition (C) is disposed of accordingly.

Sd/-

SUNIL THOMAS, JUDGE

R.AV

//True Copy// PS to Judge APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE LEASE AGREEMENT EXECUTED BETWEEN TELSON THOMAS AND THE PETITIONER DATED 12.8.2015 EXHIBIT P2 A TRUE COPY OF FIR IN CRIME NO.453/2019 OF MUVATTUPUZHA POLICE STATION DATED 18.2.2019 EXHIBIT P3 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, MUVATTUPUZHA POLICE STATION, DATED 18.2.2019.

RESPONDENT'S/S EXHIBITS NIL